I have worked for a company for over 13 years and for more than 11 of these years I have worked full time but with a split shift to allow me to collect my daughter. I was furloughed in April and then was told when I return from furlough I have to do 9-5pm with no alternative. The company knew I would not be able to do this due to having a daughter having health issues. I could not agree to the change and so my employment was terminated. The reason they gave was that the business can no longer allow my previously agreed hours as they needed to secure new contracts. They claim that it would be unfair to staff to have to cover my work for the few hours I am away from the office collecting my daughter. They have told me I have no claim for unfair dismissal and indirect discrimination. Do you agree?
Your employment contract
It is not clear whether you were initially on a 9am – 5pm contract prior to moving on to the split shifts, but I infer from the wording of your enquiry that this might have been the case. It is also not clear whether your switch to split shifts was implemented via a written agreement between you and your employer. Where this was the case, the new written agreement would have replaced your old contractual terms as far as working hours were concerned. Even where there was no written agreement, it is possible to argue that the change of your hours without your employer taking issue for over 11 years had crystallised into new terms of employment by practice.
The general common law contract position that a contract may only be amended in accordance with its terms or with the agreement of all parties also applies to employment contracts. Your employer was therefore not in a position to change your hours to 9am – 5pm if they had no contractual right to do so or without your agreement. As you have been dismissed for refusing to agree to the proposed changes, you may have possible claims for unfair and wrongful dismissal. Due to your daughter’s condition, it may also be possible to have an additional claim of associative discrimination. I discuss these in more detail below.
In order to defend an unfair dismissal claim your employer must establish a potentially fair reason for your dismissal and show that it acted reasonably in dismissing you for failure to agree to the change in the terms of your employment. In your case, the potentially fair reason your employer is likely to rely on is that of ‘some other substantial reason’ (SOSR) as they have cited a business need as the reason for requiring the change in your hours. Your employer must be able to demonstrate that the changes were not imposed for arbitrary or capricious reasons, but were in pursuit of a sound business reason. When considering the fairness of a dismissal in these circumstances, tribunals will look at the full context of the business reorganisation or proposed change and this usually entails a balancing act which weighs the reasonableness of your employer in dismissing you with the reasonableness of your refusal to accept the change. It is therefore possible that a tribunal may accept that your refusal to accept the change was reasonable (given your child care responsibilities), but then go on to find that proposed change was nonetheless connected to a sound business reason reasonably imposed by your employer and that the dismissal was fair in all the circumstances.
Case law suggests that some of the factors which would be taken into account in assessing the parties’ reasonableness would include your employer’s motives for introducing the changes, your reasons for rejecting the changes, whether the changes and full effect of those changes were sufficiently and clearly explained to you, whether your employer considered any alternatives to the changes and whether a reasonable and genuine consultation process with you took place. Most dismissals that are triggered by a failure to agree to a change will almost always be unfair where the employer has failed to follow a procedure of any kind or consulted with employees over the proposed change, even where the business is faced with financial problems which means that time is of the essence.
This is a course of action that arises where an employer dismisses an employee in breach of the contract of employment. Unlike in an unfair dismissal claim, fairness is not an issue. The only question is whether the terms of the contract have been breached. An employee will have a claim in damages if the employer’s breach caused the employee to suffer loss. It is not clear whether you were dismissed in accordance with the notice provisions of your contract. Even where there is no express notice period within your contract, employment law requires that a minimum period of notice be implied into all employment contracts.
The position is as follows: Employees with continuous employment of at least one month but less than two years are entitled to at least one week’s notice from the employer. Employees with two years’ continuous employment or more are entitled to one week’s notice for each complete year, up to a maximum of 12 weeks’ notice. The minimum notice to be given by an employee with at least one month’s continuous employment is one week. Provided that your employer has not complied with the aforementioned notice obligations, you may have a claim for wrongful dismissal. The only exceptions to this are if your employer can show that you were guilty of some conduct which entitled them to dismiss with immediate effect or if you were paid in lieu of notice.
A claim for wrongful dismissal may be brought either in the Employment Tribunal or the Civil Courts. There are various important considerations to be made before deciding which route to pursue. It is therefore strongly advised that legal advice is sought before making a decision.
Disability is one of nine characteristic protected by the law. The others are age, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Discrimination claims may be either the direct or indirect. Additionally there is the more nuanced ‘discrimination arising from disability’ route as well as disability harassment and victimisation. The law also puts employers under a duty to make reasonable adjustments for disabled employees and job applicants who are placed at a substantial disadvantage because of their disabilities. In some instances, it is possible for an individual to bring a discrimination claim based not on a characteristic of their own but on a characteristic of another person. This is known as associative discrimination and may apply to direct and indirect discrimination, harassment and victimisation. It does not cover the duty to make reasonable adjustments and discrimination arising from disability.
To establish direct discrimination, the first hurdle you would have to scale is to prove that your daughter’s Social, Emotional and Mental Health [SEMH] issues constitutes a disability. This is because general SEMH issues are not expressly deemed as disabilities under the law. However, depending on its extent and seriousness, it is possible for your daughter’s condition to meet the legal threshold. The questions a tribunal would ask are:
– Does the person have a physical or mental impairment?
– Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
– Is that effect substantial?
– Is that effect long term?
Once disability is established, you must be able to show that you have been treated less favourably than a colleague in a similar role who does not have a disabled daughter (a comparator) by the imposition of the 9-5 shift. In other words, you must show that a comparator would not have been forced to change to a 9-5 shift in the circumstances. Given that your employer appears to be implementing the new policy across the board, it may be difficult for you to establish less favourable treatment in this case. I would also note that while your employer is under a duty to make reasonable adjustments to assist its disabled employees, this duty does not extend to protect a non-disabled employee who is associated with a disabled person.
It is yet unclear whether an individual can make a claim for indirect discrimination by association due to conflicting case law, but I consider the subject in the alternative. Broadly speaking, indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. In that regard, the introduction of a permanent 9-5 shift for all staff could constitute a decision which puts employees with disabled children in your position at a disadvantage. Unlike with direct discrimination, there is no need to present a comparator. However, an employer may be able to justify the reason for the decision. Your employer may therefore have a defence to your claim if they can show that moving all staff to a 9-5 shift was a proportionate means of achieving a legitimate aim.
Please note that the above claims must be brought to an employment tribunal within three months less one day from the date of the actions complained of. I am unable to fully advise on the merits of any such claims as I have not seen the full documentation, but should you decide to pursue these claims, it would be advisable to take legal advice and commence the ACAS early conciliation process as soon as possible in order to avoid your claim being out of time.
*Albert Mould assisted with this answer.